It is rare for an embedded legal doctrine to get a decent judicial airing at the highest level but this is precisely what has happened to the doctrine of vicarious liability in the last 12 months.

Best defined in the context of the employer - employee relationship, vicarious liability creates a legal responsibility for an employer for the negligence of his employees. The doctrine requires a special relationship. Another commonly used example is the parent - child relationship.

In 2016 we reported on the handling of this issue by the Court of Appeal in a case involving local authorities in relation to the actions of abusive foster parents. In Armes v Nottingham CC [2015] the two issues before the Court were:

  1. whether the local authority could be vicariously liable in the context of the relationship between local authority and foster parent; and
  2. could an act of abuse by a foster parent be caught by a local authority's non-delegable duty of care in the context of the law as it stood in the 1980s, thus imposing a strict liability?

The Court of Appeal judges unanimously dismissed the first argument, principally on the basis that foster parents provide family life for children and this is not in any way part of the activities of a local authority or which can be controlled by them. The Court also dismissed the idea that the local authority had a non-delegable duty (strict liability).

The Claimant appealed to the Supreme Court.

It is important to note that in the intervening months the Supreme Court also decided a case involving the negligent acts of a prisoner working in the prison kitchen - Cox v Ministry of Justice - see our commentary at the time under the headline "Will the Floodgates Open?". The Cox case further extended the scope of vicarious liability to include the prison / prisoner relationship.

With this decision ringing in their ears, and whilst the proposition of a non-delegable duty was again firmly rebutted, four out of the five supreme court judges held in Armes that a local authority could be vicariously liable for the actions of the foster parents.

Their reasoning was based upon several points:

  • Foster parents could not be regarded as carrying on an independent business of their own and the abuses committed were done so in the course of an activity carried on "for the benefit of the local authority", who recruited and trained them.
  • By placing children into foster care, a local authority created a relationship of authority and trust between the foster parents and the child, but yet could not have close control over this despite these children being particularly vulnerable to abuse.
  • A local authority exercises its powers to approve, inspect and supervise fostering families and if necessary remove children. There exists a significant degree of local authority "control" over both what the foster parents do and how they go about it.
  • Finally, as we know most foster parents are unlikely to have funds to be able to pay compensation to their victims and so the Supreme judges concluded that local authorities could more easily compensate the victims of abuse.

Comment: The law of vicarious liability has taken another leap forward. We wait to see how this might be extended further into other the areas involving "control" by public bodies or where special relationships may exist.

As far as this particular case is concerned, this judgment may discourage local authorities from placing children in foster care, unless they can be sure supervision and vetting is water tight.